LAGRANGE, J

Introduction

[1]This is an application which was initially
brought on a semi-urgent basis but which the parties agreed when the
matter was first
set down on 10 July 2014 could be decided on an
expedited basis on 18 July 2014 as an application for final relief.
The applicant
seeks to declare a strike by the respondents
unprotected, on the basis that:

1.1the strike concerns a refusal to bargain in
circumstances where no advisory arbitration award has been made; and

1.2the vast majority of the individual
respondents are bound by a collective agreement which regulates the
issues in dispute.

Chronology of events

[2]The applicant (Transnet) operates in
various divisions, including Transnet Port Terminals ("TPT"),
which handles cargo
transported through South African ports. It
employs approximately 6255 employees in the bargaining unit. Ngqura
Container Terminal
(‘NCT’), which is part the TPT
division, employs 537 employees within the bargaining unit.
Approximately 100 of these
are members of NUMSA, having joined NUMSA.
NUMSA began organising at NCT in January 2014. Its
membership base consists
mainly of former SATAWU members.

[4]Prior to its establishment at the NCT, the
Applicant was engaged in collective bargaining negotiations with the
two representative
unions at NCT. These negotiations covered
three demands of mutual interest concerning changes in shift systems;
the use of
labour brokers; and the allocation of transport
subsidies. These are the demands that NUMSA is striking over.
They
have not been resolved as alleged by the Applicant.

[5]The Applicant conceded that NUMSA was not
consulted during this process as NUMSA is not a recognised trade
union, and as such is
neither a member of the Bargaining Council nor
a party to the collective agreement.

[6]The Applicant implemented a new shift
system on 14 January 2014. On the implementation of the system,
68 employees at NCT
embarked on an unprotected strike demanding a
reversion to the old shift system. Some employees returned to
work after the
Applicant issued an ultimatum whilst others downed
tools and continued with their unprotected strike. This latter
group was
suspended and it was during this time that the Applicant
alleges becoming aware that some of the employees had joined NUMSA.

[7]Subsequently, on 17 February 2014, NUMSA
gave notice of commencement of a strike on 22 February 2014.
The strike was declared
particularly over the unilateral change to
the terms and conditions of employment. This strike was however
interdicted by
the Labour Court on 21 February 2014 prompting NUMSA
to address a letter to the Applicant on 28 February 2014 inviting it
to negotiate
on the issues of mutual interest which formed part of
the interdicted strike.

[8]NUMSA’s demands were set out in a
letter dated 28 February 2014 the relevant portions of which state:

“We refer to the
above matter and hereby demand that your company implements the
demand of all our members that your company implements (sic) a
change from the present arrangement where our workers work on a
five (5) hour on and one (1) hour off basis to a three (3)
hour on and one (1) hour off basis.

As you are aware, our
members’ concerns are that the present working arrangements
lead to fatigue, which could result in the
injury of our members or
persons in the vicinity of the heavy machinery being operated by our
members, or damage to property.

We furthermore demand
that all of our members who are currently employed by labour
brokers and who render services to or perform work for your
company be permanently employed by your company ….

The union further demands
that the transport subsidy afforded to employees at other ports be
afforded to all employees equally, as there is no plausible
reason as to why such benefit is not applied equally to all parties.”

(emphasis
added)

[9]Transnet responded as follows:

“Please note that
NUMSA is not a sufficiently representative trade union in either TPT
or Transnet. Accordingly, Transnet is
not in a position to
engage with your union on the issues raised in your latest letter.
Rest assured that the issues you
raise are in process and have been
dealt with by Transnet and its recognised trade unions.”

[10]A subsequent letter addressed to NUMSA by
the Applicant’s attorneys of record, Bowman Gilfillan, dated 22
April 2014 reiterated
Transnet could engage with NUMSA on these
issues because NUMSA had not met the thresholds for recognition.
Transnet contends that
a large majority of striking workers, who are
cited as individual respondents,were at
all material times or remain members of the recognised unions SATAWU,
UTATU and SARHWU.

[11]Furthermore, the applicant proceeded to
embark on a lock-out. In the lock-out notice to NUMSA dated 24 April
2014, the applicant’s
lock-out demands are set out , amongst
others, as:

“NUMSA agrees that
Transnet will not engage NUMSA separately on the matters referred to
in 3.2 and 3.3 or on any other matters of
mutual interest unless and
until NUMSA meets the thresholds of representativeness set out in the
recognition agreement.

NUMSA accepts that
Transnet has a managerial relationship to determine the manning
ratios within the Nqura container terminal;
and NUMSA accepts
the manning ratios applied by Transnet from January 2014.

NUMSA agrees that any
engagement between Transnet and trade unions concerning manning
levels, the use of labour brokers and transport
subsidies will take
place with trade unions recognised in terms of the existing
recognition agreement concluded between Transnet,
SATAWU and UTATU
SARWHU.”

[12]In response to the lock-out notice, NUMSA’s
former attorneys of record, Minnaar Niehaus Attorneys, pointed out
that the lock-out
demands included a so-called refusal to bargain and
that consequently no industrial action (in the form of the lock-out)
could
be embarked on until such time as that issue had been dealt
with in an advisory arbitration award issued in terms of section
135(3)(a)
of the Labour Relations Act, 66 of 1995 (‘the LRA’).

[13]In response to the letter from Minnaar
Niehaus Attorneys, Bowman Gilfillan, on behalf of the applicant
retorted that:

“Insofar as certain
of our client’s lock-out demands reflect our client’s
refusal to recognise NUMSA as a collective
bargaining agent, bringing
the matter within the ambit of section 64(2) of the LRA, this
characterisation must necessarily attach
to each parties position or
demand in relation to that ‘issue in dispute’.”

[14]On 12 June 2014, NUMSA issued a press
statement recording that its members had been on strike since 25
April 2014 "as a last
organisational resort to pressure Transnet management to respond to
our genuine demands". The
statement continued: "The strike is
already entering its second month without any form of final
settlement or engagements between the parties —
the Transnet
management and NUMSA. It has never been our intention to embark on an
indefinite strike, but the strike
was imposed on us by Transnet for their blatant refusal to negotiate
with us." (emphasis added).

[15]The press statement goes on to state that
the demands "remain unchanged" and concludes "Until
these demands are not [sic] met by Transnet, we shall escalate the
strike and shut down its operations. Lastly, we remain
committed to
find a lasting solution and an immediate end of the strike. The
Transnet management has a
responsibility to return to the boardroom to engage faithfully."
(emphasis added)

Evaluation

The need for advisory
arbitration on a refusal to bargain

[16]Section 64(2) reads:

“(2) If the
issue in disputeconcerns a refusal to bargain, an
advisory award must have been made in terms of section 135 (3) (c)
before notice is given in terms of
subsection (1) (b) or (c). A
refusal to bargain includes-

(a)
a refusal-

(i)
to recognise a trade union as a collective bargaining agent;
or

(ii)
to agree to establish a bargaining council;

(b)
a withdrawal of recognition of a collective bargaining agent;

(c)
a resignation of a party from a bargaining council;

(d)
a dispute about-

(i)
appropriate bargaining units;

(ii)
appropriate bargaining levels; or

(iii)
bargaining subjects.”

(emphasis
added)

[17]Much
emphasis was placed by Transnet on the meaning of the word ‘concerns’
in the provision. It argued that the use
of the verb indicated that
it was sufficient to trigger the section that the dispute need not
actually be a refusal to bargain
but must "concern" a
refusal to bargain. Reference was made to the dictionary definition
of ‘concerns’ namely
“1.Verb
trans. Have relation or reference to…2. Verb trans.
Affect, have a bearing on, involve.”[1]

[18]By contrast, the respondents preferred to
emphasise the particularity of the phrase “the issue in
dispute” which also occurs in section 65(1)(a) of the LRA,
which sets limitations on the right to strike or recourse to
lockout. The section provides:-

“(1)
No person may take part in a strike or a lockout or in any
conduct in contemplation of furtherance
of a strike or a lockout if –

that person is bound by a
collective agreement that prohibits a strike or lockout in
respect of the issue in dispute.”

[19]Expanding on this theme, the respondents
argue that the term “issue in
dispute”, which appears in the
text of section 65(1)(a) and 64(2) is defined in Section 213 of the
LRA. In relation to a strike
or lockout, it means “the
demand, the
grievance, or the dispute that forms the
subject matter of the strike or
lockout.” (emphasis added).
The respondents argued this must be understood together with the
definition of the term strike,
which is “the
partial or complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed
by the
same employer or by different employers, for the purpose of remedying
a grievance or resolving a dispute in respect of any
matter of mutual
interest between employer and employee,….”

[20]Invoking
Fidelity
Guards Holdings (Pty) Ltd v PTWU and others[2],NUMSA
submitted it was clear that a court must pay close attention to the
issue in dispute between the parties, which entailed an
examination
of the “demand,
the grievance, or the issue that forms the subject matter of the
strike.”[3]
I agree with the view expressed in Brinant
Security Services v UPSWU and others[4] that:

“The most effective
way of determining the real issue in dispute is to ask the following
question: What must the employer do in order
to avoid the
commencement of the strike. Where the strike has already begun the
question would then be: what must the employer
do in order to bring
an end to the strike. Furthermore, employees must clarify the issue
in dispute before they embark upon strike
action – they cannot
merely embark on strike action over an issue that has not been dealt
with at conciliation.”[5]

[21]Following this train of logic, NUMSA argues
that the strike will be settled if Transnet accedes to its three
substantive demands.
Consequently, Transnet’s refusal to
bargain is not an issue in dispute and section 64(2) did not have to
be invoked as a
pre-requisite for strike action.

[22]In
the course of argument, Mr
Ngcukaitobi
who appeared for the respondents, also referred to the case of Food
& General Workers Union & others v Minister of Safety &
Security & others [6]
. In that matter, the court had found a strike was unprotected for
want of compliance with s 64(2). In considering whether the
dispute
concerned a refusal to bargain, Grogan AJ said:

[26]
Mr Nduzulwana contended that the issue in dispute underlying the
applicants' strike cannot be classified as a 'refusal to bargain'.
He
drew my attention in this regard to the formulation of the strike
notice, which provides as the reason for the proposed strike
'your
company's refusal to give them [ie the second and further applicants]
wage increases for 1998'. This indicated, so Mr Nduzulwana
argued,
that the real issue underlying the dispute was not the failure by the
fifth respondent to recognize the first applicant
as a bargaining
agent, but the fifth respondent's refusal to grant a wage increase,
even if unilaterally.

[27]
This submission overlooks the fact that would-be strikers must
identify and declare theissue
in dispute prior to setting in motion the procedure prescribed by s
64(1)(a) . Once that issue has been identified and dealt
with in
conciliation, the would-be strikers can only strike over that issue.
They cannot change the goal posts when they issue
the notice in terms
of s 64(1)(b) . How the applicants understood and designated the
issue in dispute when they referred the matter
to conciliation is
therefore of crucial importance.

[28]
While it is so that the dispute between the parties in this matter
was initiated by a standard demand for a wage increase and
improvement in certain conditions of service, this is not enough in
itself to categorize the ensuing dispute as one concerning
a mere
matter of mutual interest, as Mr Nduzulwana would have it. It is
recorded in the unchallenged answering affidavit of Mr
D Schnetler,
the fifth respondent's regional manager, that the first applicant had
been informed on a number of occasions, and
again after receiving the
demands, that the fifth respondent was not prepared to negotiate with
the first applicantbecause
it was 'entirely unrepresentative' in the Eastern Cape operations. In
the form LRA 7.11 upon which the dispute was filed
with the CCMA, the
first applicant described the dispute as being about (I quote
verbatim) 'refusal of the company to negotiate
wage increment and
conditions of employment'. The desired outcome was that the fifth
respondent 'grants us organizational rights
and allow us to negotiate
wage increment and adjustments of conditions of employment of our
members'. Furthermore, under the heading
'special features' the first
applicant proposed ‘a meeting with the company for wage
negotiations'. The first applicant also
confirmed that 'the company's
response was that we don't have a majority in the Eastern Cape
region', and added: 'Our argument
is that we have the majority which
the LRA refers to at the workplace.' Furthermore, in the founding
affidavit to this application
it is stated:

'The company advised the
union verbally that it is refusing to negotiate wage increases and
adjustments of conditions of employment
with the union because the
union does not have a majority of its employees, employed in the
Eastern Cape region, but conceded that
in its Uitenhage shop the
union has [a] majority of its employees.'

[29] The meaning of the
phrase 'refusal to recognize a trade union as a collective bargaining
agent' has not yet received judicial
attention. Mr Nduzulwana
contended that the phrase should be restrictively construed so as to
embrace only disputes arising out
of the refusal by
an employer to enter into a formal recognition agreement with a trade
union. Although I am conscious that, insofar as they curtail
the
constitutional right to strike, restrictions imposed by the Act on
strike action should be narrowly interpreted (see, for example,
Adams
& others v Coin Security Group (Pty) Ltd Labour Court case no
C163/97 dated 3 September 1998 unreported),*
in my view the phrase 'refusal to recognize a trade union as a
collective bargaining agent' embraces situations, such as those
in
casu, in which the employer refuses to negotiate with a trade union
over wages and conditions of service.” [7]

[23]The case has obvious similarities to the
matter at hand, except that in this instance the union did not
describe its dispute in
the referral form as a refusal to bargain as
such but described the facts of the dispute as: “Implementation
of 3:1 (2) Demand Permanent Employment of Labour Brokers (3)
Transport Subsidy to be equal to all employees employed.”
(sic).

[24]Nonetheless, it also identified as a
‘special feature’ of the dispute that the “Respondent
was afforded an opportunity to engage on the aforesaid demand to no
avail.” Further, NUMSA described
the desired outcome in the following terms: “To
meet with the Respondent in order to reach an agreement on our
demands.” It is also apparent
from NUMSA’s press statement that the refusal of Transnet to
engage with it was a feature of
the dispute warranting its comment.

[25]So while it is true that NUMSA’s
demands would be met if Transnet simply wrote it a letter saying it
accepted the demands
that would resolve the strike that would
necessarily entail Transnet acceding to entertain those demands and
would imply it had
accepted it, would deal with NUMSA’s demands
on substantive issues of mutual interest affecting its members. In my
mind it
is difficult to conceive such a step taking place unless
Transnet abandoned its refusal to negotiate with NUMSA, at least on
this
occasion. It seems unduly artificial and strained to say that
the dispute in question does not ‘concern’ a refusal to
bargain when abandonment of that stance is an implicit pre-requisite
for acceding to the substantive demands.

[26]For this reason, s 64(2) should have been
invoked before issuing the strike notice.

[27]Before
concluding this point, it must be mentioned that NUMSA also argued
correctly that in interpreting the LRA, the court must
favour an
interpretation which least restricts the right to strike where the
statute is capable of bearing different interpretations.
The first
point to be made in this regard is that the requirement of referring
of obtaining a non-binding advisory arbitration
award is at worst a
measure which might delay the exercise of the right to strike, it
does not bar it. Secondly, although NUMSA
argued that a restrictive
and exhaustive interpretation of the word ‘includes’ in s
64(2) is required in order not
to unnecessarily limit the right to
strike[8], even if it is correct
to apply exhaustive interpretation of the word ‘includes’
in relation to the list of disputes
which are described in
s64(2)(a),(b),(c) and (d), I do not see how that avoids the dispute
in question being described as one that
at least involves a refusal
to recognise NUMSA as a collective bargaining agent in terms of
section 64(1)(a)(i) at least in relation
to the substantive demands
made by NUMSA.

[28]In conclusion, I am satisfied that
the dispute in question does concern a refusal to bargain even if it
will not be wholly resolved
simply if Transnet agrees to negotiate
with NUMSA. Consequently, a failure to obtain an advisory arbitration
award on this issue
means that the strike is unprotected on account
of being embarked on without complying with s 64(2).

Are the majority of
NUMSA’s members barred from protected strike action in any
event?

[29]Quite apart from the application of s
64(2) of the LRA, Transnet argues that there is another reason why
the strike is unprotected
simply on the basis of the substantive
demands made by NUMSA and the recognition agreement it has concluded
with the representative
unions as well as the provisions of the
Transnet Bargaining Council. It does not contend that NUMSA itself is
bound by those agreements,
but since all but respondents' numbers 9,
22, 24, 30, 32, 56, 73, 81, 89, 103, 122 and 130) are or were members
of a recognised
unionthey are bound by
those instruments by virtue of section 23(1)(c) read with section
23(2) of the LRA.

[30]Section 23(1) reads:

"23(1) A collective
agreement binds —

(a)…

(b) …

(c) the members of a
registered trade union and the employers who are members of a
registered employers' organisation that are party
to the collective
agreement if the collective agreement regulates —

(i) terms and
conditions of employment; or

(ii) the conduct of
the employers in relation to their employees or the conduct of
the employees in relation to their employers.”

[31]Section 23(2) reads:

"(2) A collective
agreement binds for the whole period of the agreement every person
bound in terms of subsection 1(c) who
was a member at the time it
became binding, or who becomes a member after it became binding,
whether or not that person continues
to be a member of the registered
trade union or registered employers' organisation for the duration of
the collective agreement."

[32]The combined effect of the two provisions
which would apply equally to an employer who was a member of an
employer’s organisation
which concluded a collective agreement,
is that members of a union which was party to an agreement at the
time it was concluded
cannot escape the consequences of the bargains
struck by their union when they belonged to it, simply by resigning
and joining
another. If this were not so, the value of concluding
collective agreements would diminish significantly. Transnet argues
that
the strike prohibition linked to the application of those
provisions is section 65(3)(a)(i) of the LRA which reads:

"(3) Subject to a
collective agreement, no person may take part in a strike or a
lock-out or in any conduct in contemplation
or furtherance of a
strike or lock-out —

(a)
if that person is bound by — any arbitration award or
collective agreement that regulates
the issue in dispute; ..."

31.
Clause 18.1 of the recognition agreement provides that negotiations
on wages and other substantive terms and conditions of employment
for
bargaining unit employees take place in the council, unless otherwise
agreed. In section 19 of the recognition agreement dealing
with
Consultative Structures, clause 19.4 states:

“19.4 A matter of
mutual interest may be raised by any party at a consultative
structure meeting provided it is not a matter that
falls within the
jurisdiction of the Transnet Bargaining Council or a matter that
should be channelled through the grievance procedures.

Clause
19.6 further provides that:

“A dispute arising
from a consultative process will be dealt with in terms of clause 21”

In turn, clause 21
provides for the parties to try and resolve the dispute through
discussion failing which the Transnet Bargaining
Council procedures
will apply unless the parties agree otherwise.

Clause
19.14 of the same agreement under the heading Local Business
Committees (‘LBCs’) requires management to
consult
sufficiently representative unions on a number of issues in so far as
theyaffect bargaining
unit employees in the operating unit/depot/functional areas.

32.
It is common cause that the three demands on manning levels,
permanent employment of labour broker employees and a transport
subsidy are matters of mutual interest. NUMSA contends that the
demands do not concern wages or terms and conditions of employment
either and accordingly do not fall within the ambit of clause 18.1 of
the recognition agreement.

33.In
particular, it argues that Transnet had failed to demonstrate that
the demand relating to shifts or manning levels was a matter
concerning terms and conditions of employment and it clearly did not
concern a wage demand. The only question is whether that is
an issue
which is regulated by the recognition agreement. I agree that whether
the shift arrangements constitute work practices
or conditions of
employment,that is not the determinative issue for the purpose of
determining if employees may embark on a protected
strike to alter or
reinstate a particular shift pattern.[9]
That depends also on whether there is an agreed procedure for dealing
with the dispute however it is characterized. In this instance
Transnet’s stance is that the arrangements are not part of
respondent’s terms and conditions of employment, viz:

“Manning levels and
ratios do not form part of the conditions of service of employees.
They are operational matters which are determined
by various factors,
such as cargo volumes. They accordingly need to be adjusted and
changed from time to time, depending on applicants’
operational
requirements. When these changes do take place, they do not affect
employees’ conditions of service, such as
the actual jobs that
they are required to perform, remuneration and number of working
hours per week as agreed in collective agreements.”

34.
The question then is whether the recognition procedure either
regulates the issue in particular or provides for a procedure
for
addressing disputes over such an issue. On Transnet’s own
version the demand on manning levels and ratios does not concern
a
term and condition of employment and accordingly would not be
something that could be entertained in the bargaining council under
clause 18.1 of the recognition agreement. However, it would clearly
then be an issue which falls to be dealt with under clause
19.4 and
the subsequent dispute resolutions provisions of clause 21,
ultimately being referred to the bargaining council. NUMSA
may not be
bound by that but its members who were once members of one of the
recognized unions which are party to the recognition
agreement are
still bound by the dispute process which regulates an aspect of their
conduct in relation to the applicant by virtue
of s 23(1)(c)(ii) of
the LRA. The demand in relation to the permanent employment of labour
broker employees by the applicant itself
would similarly be a matter
of mutual interest falling within the ambit of the same dispute
resolution procedures.

35.
In regard to the demand for a transport subsidy, I do not understand
why this would not constitute a demand relating to a term
and
condition of employment. However, in any event, even if it were not
it would also have to be processed under the provisions
for other
mutual interest disputes under the abovementioned provisions.

36.
In the absence of any of those procedures being followed, the
individual respondents are engaged in strike action on matters
which
have not been processed through the collective agreements regulating
disputes concerning those matters and the strike action
is in breach
of section 65(3)(a)(i) of the LRA.

Conclusion

37.
In the circumstances, the applicant is entitled to the declaratory
and interdictory relief it seeks.

Costs

38.
When this matter was first brought as an urgent matter before court
on 10 July 2014, the parties agreed that the application
could be
dealt with as an application for final relief and the issue of
urgency would fall away. At that hearing I expressed
the view
that the more appropriate way of dealing with a matter of this nature
would have been to invoke the procedures in the
Labour Court Practice
Manual to obtain an expedited hearing. This would have avoided
the matter being postponed. The responsibility
for that approach not
being initiated lay largely with the applicant which only started to
canvas this possibility after it had
already launched the application
to be heard on 10 July on a semi-urgent basis, even if the
respondents could have adopted a more
flexible approach.

39.
In the circumstances, I think it just and equitable that the
applicant should not recover its costs of attending and appearing
on
10 July 2014 even if it is entitled to the remainder of its costs in
the matter.

Order

[33]An order is made in the following
terms:

33.1Declaring that the issue in dispute in the
strike by the First Respondent which commenced on Friday 25 April
2014 (‘the strike’)
concerns a refusal to bargain;

33.2Declaring the strike to be unprotected;

33.3Declaring that the Second and Further
Respondents (except those reflected in as numbers 9, 22, 24, 30 , 32,
56, 73, 81, 89, 103,
122, and 130 in Annexure 1 to the notice motion)
are bound by a collective agreement that regulates the issue in
dispute;

33.4Interdicting the individual Respondents
referred to in 2.4 from participating further in the strike;

33.5Ordering the First Respondent, to pay the
costs of the application save for the costs of the hearing on 10 July
2014.

[8]
In this regard the respondents relied on the dicta in De
Reuck v Director of Public Prosecutions (Witwatersrand Local
Division) and Others [2003] ZACC 19; 2004
(1) SA 406 (CC),
at para [18] for guidance on the proper approach to interpreting the
word ‘includes’